The right’s ever-present critiques of “judicial activism” are probably best understood as expressing discomfort with the notion of the Constitution as a sword, a way of not just halting, but affirmatively rolling back prior encroachments by the majority into the minority’s solace. How curious, then, that Obama’s ascendancy would coincide with conservative attempts to use the Constitution as a means of social change — in the opposite direction, and without the intellectual backing that continues to power the progressive Constitution.
More and more, we hear conservatives tout the Constitution as a document of “limited government,” therefore antithetical to everything President Obama stands for (e.g.). Although we’ve previously addressed that question specifically, and legally, we might be giving our opponents too much credit. While the Constitution does create a “limited government,” no conservative commentator has ever truly traced the logical steps between that point and the conclusion that, say, health care reform would be unconstitutional. Rather, most commentators seem content to rest conservatism’s case on the general sentiment that government is and ought to be “limited,” whatever that means.
For a political theory premised elsewhere on the idea that constitutional “feelings” shouldn’t compel constitutional rules, this intellectual laziness is unforgivable. The “rights” revolution that, over the course of the twentieth century, transformed the Constitution into a profoundly countermajoritarian document relied upon a rigorously intellectual attempt to re-ground the Constitution in democratic theory, addressing its flaws while preserving its strengths. At the movement level, progressive rhetoric on rights has always been accompanied by well-grounded legal arguments, originalist or otherwise. By omitting this intellectual core and proceeding on rhetoric alone, the conservative “limited government” movement manages to do little more than become their own straw-man version of liberalism in reverse.
The Constitution was drafted by men who understood that sentiments and feelings have little meaning unless reduced to rules by which we must all abide. The 20th century’s progressive leaders — those men and women who gave us Brown v. Board, Loving v. Virginia, and a new way of addressing the countermajoritian difficulty — appreciated the distinction. Middle-aged men dressed up as Revolutionary soldiers, waving the Gadsden Flag and wielding Obama/Joker posters, can hardly claim to be the equal of either.